ALJDEC

01F-G1200-ROC · Registrar of Contractors · 2002-01-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 9, 2002 APPEARANCES: Complainant Michael Walworth appeared on his own behalf. Gary Jones appeared on behalf of Respondent All State Well Drilling ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________

The issue presented by this matter is whether Respondent All State Well Drilling is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

Procedural Background

On October 24, 2001, the Registrar of Contractors issued a Notice of Hearing advising the parties that the scheduled hearing of this matter would convene on January 9, 2002 at 1:30 p.m. On January 8, 2002, Complainant Mike Walworth faxed to the Office of Administrative Hearings a request to continue the hearing (the “request”) in order to afford him the opportunity to obtain estimates to repair the alleged damage referenced in his Registrar of Contractors complaint. Due to the untimely filing of the request, the Administrative Law Judge did not issue a ruling prior to the time set for hearing. At the commencement of the hearing, as a preliminary matter, the Administrative Law Judge addressed the request and heard argument from both Complainant and Respondent. The Administrative Law Judge denied the request and the hearing proceeded as scheduled.

FINDINGS OF FACT All State Well Drilling (“All State”) is the holder of a Class K-53 license (No. 138753) issued by the Registrar of Contractors (“ROC”). Gary Jones is All State’s owner and qualifying party. Complainant Mike Walworth had entered into a contract with SMT Investors (“SMT”) for the purchase of a five acre piece of property with a well. At the time Mr. Walworth entered into the contract, the well had not yet been drilled. SMT engaged All State to drill the well. On June 25, 2001, Mr. Walworth filed the instant complaint against All State with the ROC alleging, specifically, that All State “drove across property creating new roads that were not wanted destroying property; did not stay on road provided.” ROC Inspector John Ratcliff investigated Mr. Walworth’s complaint. 5. Inspector Ratcliff scheduled a jobsite inspection for July 12, 2001. Only Mr. Walworth was present for that inspection. 6. On July 19, 2001, following the jobsite inspection, Inspector Ratcliff issued a Corrective Work Order (“CWO”) under which the ROC gave All State days to take the following corrective action: Re-vegetate the areas driven on off of the provided road and the excess areas torn up around the well that was not necessary.

Mr. Walworth built a road for All State to access the well site. However, the evidence of record established that this road was insufficient to accommodate the size of the equipment necessary for All State to drill the well. Mr. Jones, All State’s owner, testified at hearing that All State attempted to use the road provided by Mr. Walworth, but could not do so because the road was poorly constructed and would not tolerate the magnitude of the drilling equipment. The road provided was too narrow and contained a sharp turn. Although Mr. Walworth built the road to provide access for the drilling equipment, this road was unacceptable for that purpose. The evidence of record further established that All State utilized the shortest alternative route possible to access the well site, and that this route had already been utilized by other equipment performing work on Mr. Walworth’s property, resulting in the damaged vegetation about which Mr. Walworth filed his complaint. Mr. Jones credibly testified that after the first day on which All State performed its well drilling activities, Mr. Walworth contacted Mr. Jones to complain that All State did not use the road provided. Mr. Jones testified that he explained to Mr. Walworth that the provided road was inaccessible and that another route was necessary to access the well drilling site. Mr. Jones further credibly testified that Mr. Walworth asked him to finish drilling the well, despite All State’s inability to utilize the provided road. The evidence of record established that Mr. Walworth telephoned a reference of All State’s, and on the reference’s recommendation, Mr. Walworth requested that All State complete the project. Mr. Jones further testified that it took approximately three weeks to complete the well drilling, and that All State utilized the same alternative path for the duration of the project. The evidence of record established that at no time during All State’s well drilling activities did Mr. Walworth request that All State discontinue its work. Further, the evidence of record established that Mr. Walworth was aware of the inaccessibility of the provided road at the outset of the project and made no effort to terminate All State’s services. 13. Inspector Ratcliff testified at hearing that he did not know if he would have reached the same conclusion as delineated in his CWO, if All State had been present for the jobsite inspection, because the information he received regarding the complaint was only from Mr. Walworth’s perspective.

CONCLUSIONS OF LAW In this proceeding, Mr. Walworth, as the Complainant, bears the burden to prove, by a preponderance of the evidence, that All State is subject to discipline for violations of A.R.S. § 32-1154(A)(2), (A)(3), (A)(7) and/or (A)(23) as charged by the ROC in its September 24, 2001 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). The Administrative Law Judge concludes that Mr. Walworth failed to meet his burden of proof as to all four of the ROC charges. Under A.R.S. § 32-1154(A)(2), a contractor is subject to discipline for the “departure from or disregard of plans or specifications . . . in any material respect which is prejudicial to another without consent of the owner . . . and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications . . .” The Administrative Law Judge concludes, from the evidence presented, that All State initially departed from the specifications of the project, but justifiably so. The performance of All State’s well drilling activities was contingent upon access to the well site. Such activities would have been impossible with the specification that All State utilize a road that could not accommodate its equipment. Therefore, the Administrative Law Judge concludes that All State acted reasonably in its departure from this specification, by accessing the shortest alternative available, and previously traveled route. The Administrative Law Judge further concludes that Mr. Walworth is estopped from claiming improper departure from plans or specifications because he knowingly allowed such departure to take place. Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged All State with a violation of A.A.C. Rule R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes, from the evidence presented, that All State performed its work in a professional and workmanlike manner, and therefore did not violate A.R.S. § 32-1154(A)(3). Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, from the evidence presented, that Mr. Walworth failed to prove by a preponderance of the evidence that it was All State that damaged the surrounding vegetation, and not another. Therefore, All State did not violate A.R.S. § 32-1154(A)(7). Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving written directive from the registrar.” The Administrative Law Judge concludes, from the evidence presented, that Mr. Walworth failed to prove that All State caused the damage to the vegetation, and because All State acted reasonably and professionally in its well drilling activities, All State was not responsible for the corrective action indicated in the ROC’s July 19, 2001 CWO. Therefore, All State did not violate A.R.S. § 32- 1154(A)(23). 7. Based on the foregoing, the ROC should not impose discipline against All State’s license. . . . . . . . . . . . . . .

RECOMMENDED ORDER In view of the foregoing, it is recommended that the ROC’s Citation and Complaint In Case No. G01-1200 be dismissed.

Done this day, January 22, 2002.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of January, 2002, to:

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826